Grace & Anor v Thomas Street Café Pty Ltd & Ors ( No 2)

[2008] NSWCA 72

NSW Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Costs
3. › Awarding or reserving costs of appeal
4. › Where matter remitted to trial judge
5. › Whether costs should be reserved pending remitted hearing
6. › Uniform Civil Procedure Act 2005 (NSW), s 98
1. Practice and Procedure
2. › Costs
3. › Calderbank offers
4. › Without prejudice correspondence
5. › Whether specific form required
6. › Whether pre-trial offer operates on appeal if not renewed
1. Practice and Procedure
2. › Judgments and orders
3. › Setting aside or varying orders before entry
4. › Reopening of judgment or orders
5. › Discretion to be exercised sparingly
6. › Uniform Civil Procedure Rules 2005 (NSW), r 36.16(1)

Quick Take

Without prejudice correspondence relevant to costs does not need to be in any set form or marked 'without prejudice except as to costs'; the content of the correspondence is what matters. Pre-trial settlement offers generally do not operate on appeal if not renewed, though they may be relevant to the exercise of the costs discretion depending on all circumstances. Where an appeal succeeds on a substantive legal issue but relief is remitted, the successful appellant should generally have costs of the appeal on the substantive issue, with costs of the remitted issue reserved.